The Indiana Court of Appeals reversed the denial of an agreed petition to establish paternity and maternity of a child who was born of a surrogate, finding equitable relief should allow the biological mother to establish she is in fact the baby's biological mother.

The embryo of husband and wife T.G. and V.G. was implanted into V.G's sister, D.R., who gave birth to baby R. T.G. executed a paternity affidavit, but the Porter Circuit Court denied establishing maternity because Indiana law doesn't permit a non-birth mother to establish maternity and the law holds the birth mother is the legal mother.

It's presumed in Indiana that the woman who gives birth to a child is the baby's biological mother, but reproductive technologies have made it possible for a woman to give birth to a baby that is not biologically hers. There's no statute specifically providing procedures for establishing maternity.

The state argued in In the matter of the paternity and maternity of infant R., No. 64A03-0908-JV-367, equitable relief may be afforded under the circumstances of the case; T.G., V.G., and D.R. claimed Indiana's paternity statutes could be construed so as to apply equally to their situation.

"While we conclude that the public policy for correctly identifying biological parents is clearly evinced in our paternity statutes, it does not follow that we must embark on a wholesale adoption and application of these statutes in order to provide relief under the narrow set of circumstances we are presented with today," wrote Judge L. Mark Bailey. "Rather, it is for the Legislature to evaluate and deliberate comprehensive proposals for changes to these statutes."

The appellate court decided, however, that these circumstances suggest that equity should provide an avenue for relief. If equity ignores technological realities the law has yet to recognize, a baby born under these circumstances would be denied the opportunity other children have to be linked to those with whom he shares DNA. A surrogate would be denied a remedy available to putative, but not biological fathers, to remove an incorrect designation on a birth certificate and avoidance of legal responsibilities for someone else's child, the judge continued.

"We are aware of no reason why the public interest in correctly identifying a child's biological mother should be less compelling than correctly identifying a child's biological father," he wrote.

The presumptive relationship that D.R. is the biological mother will stand unless V.G. establishes she is in fact the biological mother, which she must do by clear and convincing evidence. This would involve more than just an affidavit between the parties.

The Court of Appeals remanded with instructions for the trial court to conduct an evidentiary hearing, and if V.G. can prove she is the biological mother, grant all other relief just and proper under the circumstances.

Jennifer Nelson, editor, began writing for Indiana Lawyer in spring 2007. She previously was a reporter for IBJ Media’s Court & Commercial Record for 14 months. She spent five years as managing editor of Indiana Lawyer before becoming editor in December 2015.

Nelson won a second-place award in 2008 from the Indiana Chapter of the Society of Professional Journalists for an IL story about the lack of resources for jurors who have to witness grueling evidence during criminal trials. While writing for CCR, she won first-place and second-place awards for business writing from the Hoosier State Press Association.

Nelson graduated from Indiana University with a bachelor's in journalism and political science. After graduation, she freelanced for several publications before joining IBJ Media. In the fall and winter, she and her husband can be found in Bloomington cheering on the Hoosiers in football and basketball.